How To Write A Farmout Agreement Term Sheet

Transcription

1 2006

2 Introduction This Term Sheet is designed to support the development and negotiation of a farmout agreement using the AIPN 2004 International Model Farmout Agreement (the Farmout Agreement ) as the basic form. The Guidance Notes are intended to assist the oil and gas industry professional in utilizing the Term Sheet as a preliminary step toward the negotiation and consummation of a Farmout Agreement. The items included in the Guidance Notes are not all-inclusive; instead, they reflect the drafting committee s assessment of those points that it considered sufficiently useful so as to warrant being mentioned herein for future reference. The Term Sheet is intended to facilitate a transaction which uses the Farmout Agreement as the form of the base instrument. The Term Sheet strictly follows the provisions of the Farmout Agreement, and does not include alternative provisions or options that are not included in the Farmout Agreement. If the parties to a contemplated transaction desire to vary the terms from those offered in the Farmout Agreement, such provisions can be set out in this Term Sheet as appropriate. The Term Sheet is not a contract summary; instead, it provides an outline or checklist of significant business provisions of the Farmout Agreement which would likely be discussed prior to the implementation of a fully-termed agreement. Certain provisions in the Farmout Agreement, such as the General Provisions, were not included in the Term Sheet because, in the view of the committee, they were not key to the description of the business agreement to be reached in the farmout agreement. Those provisions that were not included are identified below. If there are particular circumstances where any such provision is deemed to be of critical importance to the contemplated business transaction, that provision can be added to the Term Sheet.

3 Areas of the Farmout Agreement not covered in this Term Sheet include: Article 1. Definitions. Article 5 Obligations under Contract and JOA Article 9. Confidentiality. Article 10. Notices. Section 14 General Provisions. In developing this Term Sheet, the drafting committee applied the following standards: (i) Assumed that the objective of the term sheet is to facilitate reaching a final agreement based on the Farmout Agreement. (ii) Followed the Farmout Agreement without additions or variations. Assumed that the user would edit the Term Sheet for any unique or deal-specific terms; many of those issues are discussed in the International Model Farmout Agreement Users Manual. (iii) Followed the Farmout Agreement in showing provisions in the Term Sheet as standard terms or as alternative or optional provisions. (iv) Created a stand-alone Term Sheet which provides enough information from the Farmout Agreement so that there is no need to refer to the Farmout Agreement to understand or discuss the provisions of the Term Sheet. (v) Assumed that oil and gas professionals using the Term Sheet are familiar with the concepts and essential issues in the Farmout Agreement. (vi) Included only essential or primary business terms from the Farmout Agreement in the Term Sheet. Assumed that the user would edit the Term Sheet to add any additional deal-specific, essential terms. (vii) Did not necessarily follow the exact article and section numbering from the Farmout Agreement in the Term Sheet. A correlation table is contained herein to assist the user in relating the Term Sheet provisions back to the Farmout Agreement. (viii) Prepared the Term Sheet in an effort to facilitate readability and promote discussion. (ix) Formatted the Term Sheet so that the provisions are clearly visible and recognizable and there is space for working notations during discussions. Although the Term Sheet is intended to stand alone without reference to the Farmout Agreement, the drafting committee incorporated by reference defined terms from the Farmout Agreement. The user may wish to use more generic terminology in this Term Sheet, or include definitions in the Term Sheet. Certain items in this Term Sheet cover provisions from more than one section or article of the Farmout Agreement, e.g., assignment terms in Article 2 and Section 7.1A. are combined in Paragraph 1 of the Term Sheet, in order to simplify and streamline the Term Sheet. Various optional or alternative terms under each article or section in the Farmout Agreement have been grouped together in the Term Sheet to simplify and streamline the Term Sheet. Other practice notes that were raised in drafting committee discussions include the following: Paragraph 1. Parties and Contract Area.

4 The user should consider attaching a detailed description in the form of a map, diagram, or other descriptive material which clarifies the extent of the Contract Area. This Term Sheet adopts the same base assumption as the Farmout Agreement that the rights derived under the Farmout Agreement exist by virtue of a granting instrument with a host country (i.e. a production sharing agreement, concession, or other arrangement), and that, typically, there is or will be a joint operating agreement or other joint agreement in effect among the owners. Paragraph 2. Assignment of Interest. Although before-assignment Participating Interests are not specified in the Farmout Agreement, the drafting committee felt that it added clarity to include both the before and after-assignment Participating Interests of all parties. The user may wish to include the provision from Section 2.5 of the Farmout Agreement regarding monetary adjustments and payments among the parties if any disparity arises between the Effective Date of the Farmout Agreement between the parties and the application of the granting instrument from the host country or the governmental approval date. Paragraph 3. Conditions Precedent to Agreement. The user may wish to add a statement carrying forward the concept in Section 3.3 of the Farmout Agreement that a party may terminate the Farmout Agreement if there is a failure to meet the Conditions Precedent by a stated deadline, irrespective of any event of Force Majeure. Since the Term Sheet contains options and alternatives for various provisions, the user may wish to edit the Term Sheet before disclosing it to a prospective counterparty. Consideration must be given to compliance with local law and enforceability of the provisions in the Term Sheet and the Farmout Agreement. The Term Sheet is drafted as a general expression of the parties intent to further negotiations, and not as a legally-binding instrument. There is no suggestion that use of this or any term sheet in any particular negotiation is necessary or recommended. The parties may desire to include the Term Sheet as an exhibit to a letter of intent in order to further the negotiating process; accordingly, the drafting committee has provided a Model Form Letter of Intent to accompany the Term Sheet.

5 Correlation Table Term Sheet Provision Article in AIPN Model Form 2. Assignment 2 and 7.1a 3. Conditions Precedent 3 4. Consideration 4 5. Undertaking of the Parties 6 6. Representations and Warranties 7 7. Tax 8 8. Law and Dispute Resolution 11 9 Force Majeure Default 13